# BHUVNESH KUMAR DWIVEDI v. M/S HINDALCO INDUSTRIES LTD

- **Citation:** [2014] 12 S.C.R. 1080
- **Court:** Supreme Court of India
- **Decided:** 2014-04-25
- **Case number:** Civil Appeal Nos.4883-4884 of 2014
- **Bench:** Gyan Sudha Misra, V. Gopala Gowda
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhuvnesh-kumar-dwivedi-v-m-s-hindalco-industries-ltd-29475
- **Pages:** 40

## Headnote

Labour Laws - Interference with order of Labour Court I
Industrial tribunal - Jurisdiction of High Court - Held: High
C Court can interfere with an order of the Tribunal only on the
procedural level and in cases, where decision of the lower
courts was arrived at in gross violation of the legal principles
- High Court shall interfere with factual aspect placed before
the Labour Courts only when it is convinced that the Labour
D Court has made patent mistakes in admitting evidence
illegally or have made grave errors in law in coming to the
conclusion on facts - Constitution of India, 1950 - Arts. 226
and 227 - Judicial review.
Harjinder Singh v. Punjab State Warehousing
E Corporation (2010) 3 SCC 192: 2010 (1) SCR 591; Heinz
India (P) Ltd. v. Union of India (2012) 5 SCC 443: 2012 (3)
SCR 898 and Devinder Singh v. Municipal Council, Sanaur
(2011) 6 SCC 584: 2011 (4) SCR 867 - relied on.
F
Labour Laws - Termination - Legality - Respondentemployer terminated the services of appellant-workman as per
practice with the reason 'sanction expired' - Plea of appellant
that the termination was a clear case of retrenchment as
opposed to the provision in s.6N of the UPID Act which is in
G pari materia with s. 25N of the ID" Act - Held: Appellant
rendered continuous service for six continuous years (save
the artificially imposed break) as provided uls.258 of Act and
could therefore be subjected to retrenchment only through the
procedure mentioned in the ID Act or the UPID Act (the State
H
1080
BHUVNESH KUMAR DWIVEDI v. HINDALCO
1081
INDUSTRIES LTD.
Act in pari materia) - Action of respondent was a clear case
A
of retrenchment of appellant, which required compliance with
the mandatory requirement of s. 6-N of UPID Act - Since the
same was not complied with, therefore, order of retrenchment
was rendered void ab initio in Jaw - s.2(oo)(bb) of the l.D. Act
not attracted in the case herein - Industrial Disputes Act, 1947
B
- s.2(oo)(bb) and 25N - Uttar Pradesh Industrial Disputes Act,
1947 - s.6N and 25B.
Labour Laws -
Termination -
Entitlement for
reinstatement with full back wages and other consequential
reliefs - Held: Termination of appellant being found illegal C
and void ab initio, he was entitled to reinstatement - Burden
of proof that appellant was gainfully employed post
termination of his service was on respondent-employer -
However, claim of respondent that appellant was gainfully
employed somewhere was vague and could not be D
considered and accepted - Appellant accordingly entitled to
full back wages from the date of termination till the date of
reinstatement - High Court erred by exceeding its jurisdiction
u!Art.227 of the Constitution in holding that appellant in fact,
resigned by not joining his duty as a 'badly' worker and also
E
awarding that retrenchment compensation to the tune of
1, 00, 0001- will do justice to appellant without assigning
reasons, which was wholly unsustainable in Jaw.
U. P. State Sugar Corporation Ltd. v. Om Prakash
F
Upadhyay (2002) 10 SCC 89; State Bank of India v. Shri N.
Sundara Money AIR 1976 SC 1111: 1976 (3) SCR 160;
Anoop Sharma v. Executive Engineer, Public Health Division
No. 1 Panipat (2010) 5 SCC 497; Shiv Nandan Mah to v.
State of Bihar & Ors. (2013) 11 SCC 626; General Manager,
G
Haryana Roadways v. Rudhan Singh (2005) 5 SCC 591:
2005 (1) Suppl. SCR 569 and Deepali Gundu Surwase v.
Kranti Junior Adhyapak Mahavidyalaya (2013) 10 SCC 324:
2013 (9) SCR 1 - relied on.
H
1082
SUPREME COURT REPORTS
[2014] 12 S.C.R.
A
Allowing the appeals, the Court
HELD:1.1. In the case at hand, the periods of service
of the appellant extended to close to 6 years save the
artificial breaks made by the respondent with an oblique
8 motive so as to retain the appellant as a temporary
worker and deprive the appellant of his statutory right of
permanent worker status. The aforesaid conduct of the
respondent perpetuates 'unfair labour practice as
defined under Section 2(ra) of the l.D. Act, which is not
permissible in view

## Text

_Characters 0–39,743 of 76,647. This is a partial read: ask again with offset=39743 for what follows._

A
B
[2014] 12 S.C.R. 1080
BHUVNESH KUMAR DWIVEDI
v.
M/S HINDALCO INDUSTRIES LTD.
(Civil Appeal Nos.4883-4884 of 2014)
APRIL 25, 2014
[GYAN SUDHA MISRA AND V. GOPALA GOWDA, JJ.]
Labour Laws - Interference with order of Labour Court I
Industrial tribunal - Jurisdiction of High Court - Held: High
C Court can interfere with an order of the Tribunal only on the
procedural level and in cases, where decision of the lower
courts was arrived at in gross violation of the legal principles
- High Court shall interfere with factual aspect placed before
the Labour Courts only when it is convinced that the Labour
D Court has made patent mistakes in admitting evidence
illegally or have made grave errors in law in coming to the
conclusion on facts - Constitution of India, 1950 - Arts. 226
and 227 - Judicial review.
Harjinder Singh v. Punjab State Warehousing
E Corporation (2010) 3 SCC 192: 2010 (1) SCR 591; Heinz
India (P) Ltd. v. Union of India (2012) 5 SCC 443: 2012 (3)
SCR 898 and Devinder Singh v. Municipal Council, Sanaur
(2011) 6 SCC 584: 2011 (4) SCR 867 - relied on.
F
Labour Laws - Termination - Legality - Respondentemployer terminated the services of appellant-workman as per
practice with the reason 'sanction expired' - Plea of appellant
that the termination was a clear case of retrenchment as
opposed to the provision in s.6N of the UPID Act which is in
G pari materia with s. 25N of the ID" Act - Held: Appellant
rendered continuous service for six continuous years (save
the artificially imposed break) as provided uls.258 of Act and
could therefore be subjected to retrenchment only through the
procedure mentioned in the ID Act or the UPID Act (the State
H
1080
BHUVNESH KUMAR DWIVEDI v. HINDALCO
1081
INDUSTRIES LTD.
Act in pari materia) - Action of respondent was a clear case
A
of retrenchment of appellant, which required compliance with
the mandatory requirement of s. 6-N of UPID Act - Since the
same was not complied with, therefore, order of retrenchment
was rendered void ab initio in Jaw - s.2(oo)(bb) of the l.D. Act
not attracted in the case herein - Industrial Disputes Act, 1947
B
- s.2(oo)(bb) and 25N - Uttar Pradesh Industrial Disputes Act,
1947 - s.6N and 25B.
Labour Laws -
Termination -
Entitlement for
reinstatement with full back wages and other consequential
reliefs - Held: Termination of appellant being found illegal C
and void ab initio, he was entitled to reinstatement - Burden
of proof that appellant was gainfully employed post
termination of his service was on respondent-employer -
However, claim of respondent that appellant was gainfully
employed somewhere was vague and could not be D
considered and accepted - Appellant accordingly entitled to
full back wages from the date of termination till the date of
reinstatement - High Court erred by exceeding its jurisdiction
u!Art.227 of the Constitution in holding that appellant in fact,
resigned by not joining his duty as a 'badly' worker and also
E
awarding that retrenchment compensation to the tune of
1, 00, 0001- will do justice to appellant without assigning
reasons, which was wholly unsustainable in Jaw.
U. P. State Sugar Corporation Ltd. v. Om Prakash
F
Upadhyay (2002) 10 SCC 89; State Bank of India v. Shri N.
Sundara Money AIR 1976 SC 1111: 1976 (3) SCR 160;
Anoop Sharma v. Executive Engineer, Public Health Division
No. 1 Panipat (2010) 5 SCC 497; Shiv Nandan Mah to v.
State of Bihar & Ors. (2013) 11 SCC 626; General Manager,
G
Haryana Roadways v. Rudhan Singh (2005) 5 SCC 591:
2005 (1) Suppl. SCR 569 and Deepali Gundu Surwase v.
Kranti Junior Adhyapak Mahavidyalaya (2013) 10 SCC 324:
2013 (9) SCR 1 - relied on.
H
1082
SUPREME COURT REPORTS
[2014] 12 S.C.R.
A
Allowing the appeals, the Court
HELD:1.1. In the case at hand, the periods of service
of the appellant extended to close to 6 years save the
artificial breaks made by the respondent with an oblique
8 motive so as to retain the appellant as a temporary
worker and deprive the appellant of his statutory right of
permanent worker status. The aforesaid conduct of the
respondent perpetuates 'unfair labour practice as
defined under Section 2(ra) of the l.D. Act, which is not
permissible in view of Sections 25T and 25U of the l.D.
C. Act read with entry ~t Serial No. 10 in the Vth Schedule
to the l.D. Act regarding unfair labour practices. The
respondent, in order to mitigate its conduct towards the
appellant has claimed that the appellant was appointed
solely on contract basis, and his service has been
D terminated in the manner permissible under Section 2
(oo) (bb) of the l.D. Act. However, this contention of the
respondent cannot be accepted for the following
reasons:- (i) Firstly, the respondent has not produced any
material evidence on record before the Labour Court to
E prove that it meets all the required criteria under the
Contract Labour (Regulation and Abolition) Act, 1970, to
be eligible to employ employees on contractual basis
which includes license number etc.; (ii) Secondly, the
respondent could not produce any material evidence on
F record before the Labour Court to show that the appellant
was employed for any particular project(s) on the
completion of which his service has been terminated
through non-renewal of his contract of employment.
Therefore, it is deemed fit to construe that the appellant
G has rendered continuous service for six continuous
years (save the artificially imposed break) as provided
under Section 258 of the l.D. Act and can therefore be
subjected to retrenchment only through the procedure
mentioned in the l.D. Act or the state Act in pari materia.
H [Paras 23, 24 and 25] [1103-F, G; 1104-D-H; 1105-A]
BHUVNESH KUMAR DWIVEDI v. HINDALCO
1083
INDUSTRIES LTD.
1.2. The Labour Court was correct in holding that the
A
action of the respondent/employer is a clear case of
retrenchment of the appellant, which action requires to
comply with the mandatory requirement of the provision
of Section 6-N of the U.P. 1.0. Act. Undisputedly, the same
has not been complied with and therefore, the order of B
retrenchment has rendered void ab initio·in law. [Para 26]
[1105-B, C]
Case Law Reference:
2010 (1) SCR 591
relied on
Para 9
c
2012 (3) SCR 898
relied on
Para 16
2011 (4) SCR 867
relied on
Para 16
(2002) 1 o sec 89
relied on
Para 20
D
1976 (3) SCR 160
relied on
Para 27
(201 O) s sec 497
relied on
Para 28
(2013) 11 sec 626
relied on
Para 30
E
2005 (1) Suppl. SCR 569 relied on
Para 31
2013 (9) SCR 1
relied on
Para 32
CIVIL AP PELLA TE JURISDICTION : Civil Appeal Nos.
4883-4884 of 2014.
F
From the Judgment and Order dated 10.03.2011 of the
High Court of Judicature at Allahabad in CMWP No. 8784 of
2002 dated 12.01.2011 in CMWP No. 8784 of 2002, CMRA
No. 118006 of 2011.
Bharat Sangal, RR. Kumar for the Appellant.
C.U. Singh, Syed Shahid Hussain Rizvi for the
Respondent.
The Judgment of the Court was delivered by
G
H
1084
SUPREME COURT REPORTS
[2014] 12 S.C.R.
A
V.GOPALA GOWDA, J. 1. Leave granted.
2. These appeals are filed against the final judgment and
order dated 10.03.2011 passed by the High Court of
Judicature at Allahabad in Civil Misc. Writ Petition No. 8784
8
of 2002 and also against judgment and order dated 12.10.2011
passed by the High Court of Allahabad in Civil Misc. Review/
Recall Application No. 118006 of 2011 by allowing the writ
petition filed by the respondent-employer and setting aside the
award passed by the Labour Court which substituted the same
C by issuing direction to the respondent-employer (for short "the
employer") to pay a sum of 1,00,000/- as damages to the
appellant-workman. The direction issued by the High Court in
its judgment further states that the amount shall either be paid
through draft to the workman or deposited before the Labour
Court within three months for immediate payment to the
D workman. In case of default, 12% interest per annum shall be
payable on Rs. 1,00,000/- after three months till actual payment/
deposit/realisation.
3. However, the backdrop of industrial dispute between the
E parties is briefly stated hereunder to find out whether the
appellant is entitled for the relief as prayed in these appeals.
It is the case of the appellant-workman that he was
appointed as Labour Supervisor in the employer's factory on
30.12.1992 and he worked continuously in terms of Section
F 258 of the Industrial Disputes Act, 1947 (for short "the l.D. Act")
in the said post till 28. 7 .1998- the day on which his services
were terminated. It is the case of the appellant-workman that
he has worked for six calendar years from the date of his
appointment till the termination of his service and he has
G rendered more than 240 days of continuous service in every
calendar year before his termination. The respondent-employer
terminated the services of appellant-workman on 27.7.1998 as
per practice with the reason 'sanction expired'. The respondentemployer neither paid retrenchment compensation nor issued
H any notice or paid wages in lieu of the same to the appellant-
BHUVNESH KUMAR DWIVEDI v. HINDALCO
1085
INDUSTRIES LTD .. [V. GOPALA GOWDA, J.]
workman as mandated under Section 6N of the U.P. Industrial
A
Disputes Act (for short "the U.P. l.D. Act"). The respondentemployer engaged the appellant-workman for work against a
po.st which was permanent in nature but his appointment was
made only for a temporary period from 1992 to 1998 with
oblique motive to deprive his statutory rights. At the end of
B
every working year, the workman was handed over a receipt
of 'relieved from ·work' and after 4-6 days, he was again
engaged for three or six months but without proper procedure
and in this manner, he was continuously made to work for full
one year and each time the annual increase in wages was c
shown in the fresh appointment letter. During the entire period
of service of the appellant-workman with the respondentemployer, the management followed the process of annually
terminating him from service and again reappointing him in the
same post by assigning the same Badge No., ID No. in the
D
same department of Construction Division with the marginal
increase of salary and dearness allowance per month.
4. It is the further case of the appellant-workman that during
the course of his employment with the respondent- employer,
he had noticed that very few workmen were actually made
E
permanent by the management and rest of the work force was
deprived from the benefit of permanent post by being kept on
temporary basis or emergency basis, on da.ily wage basis or
on contract basis. Even though the Construction Division of the
employer has been in existence ever since the beginning of its
F
establishment and is necessary for continuous productions in
factory, thousands of workmen are employed in the said division
in the above mentioned manner and very few of them are made
permanent. It is the further case of the appellant-workman that
in accordance with the regular orders passed in the practice
G
of the Company, the concerned workman always fell in the
category of workman but due to the improper and unfair labour
practice as mentioned in Schedule V under s. 2(ra) of the l.D.
Act it has kept the appellant as temporary workman for the
period of employment, which is opposed to law.
H
1086
SUPREME COURT REPORTS
[2014] 12 S.C.R.
A
5. It is the further case of the appellant-workman that he
falls within the definition of workman under s. 2(s) of the l.D.
Act and has been rendering service since the day of his
appointment on 30.12.1992. Therefore, termination of his
contract is a clear case of retrenchment as opposed to the
B provision in Section 6N of the U.P. l.D. Act. The employer on
the other hand, did not comply with the mandatory provision of
s. 6-N of the U.P. l.D. Act which sets the conditions precedent
to be fulfilled prior to retrenchment of workmen which is in pari
materia with s. 25N of the l.D. Act. The respondent-employer
C neither complied with the aforesaid mandatory provisions nor
did the respondent pay retrenchment compensation or issue
three months notice or notice pay in lieu of the same. Therefore,
as per the appellant-workman, termination from his service is
in contravention of the provisions of the U.P. l.D. Act and the
0
legal principle laid down by this Court in catena of cases in this
regard which will be adverted into the reasoning portion of the
judgment. Therefore, the appellant-workman had raised an
industrial dispute with a request to the state government to
make reference for adjudication of existing industrial dispute
regarding the termination of service of the appellant workman
E from his service by the employer. The Assistant Labour
Commissioner made Reference Order No. 1454 CP 15/98
dated 24.9.1999 to the Labour Court at Varanasi. The reference
was registered in Case no. 59 of 1999 by the Labour Court,
Varanasi, U.P. The Labour Court, after conducting enquiry has
F adjudicated the industrial dispute between the parties by
answering the points of dispute and passed an award in favour
of the appellant-workman holding that the termination of his
service is not justified since the respondent has not produced
any material evidence on record to justify the order of
G termination. Further, the Labour Court has held that the
appellant is entitled to reinstatement with back wages and other
consequential benefits as if his services were never terminated.
6. Aggrieved by the said award, the respondent-employer
H filed Civil Misc. Writ Petition No. 8784 of 2002 before the
BHUVNESH KUMAR DWIVEDI v. HINDALCO
1087
INDUSTRIES LTD. [V. GOPALA GOWDA, J:]
learned single Judge of the High Court of Judicature' at
A
Allahabad questioning the correctness, legality and validity of
the award passed by the Labour Court taking the following
pleas:
·
(i) It is pleaded by the respondent that the appellant was
8
employed purely on temporary basis in the project jobs in the
Construction Divisio·n of the Company for specific periods and
finally he was employed with effect from 23.1.1998 for six
months and his services automatically came to an end as per
· terms of the contract of employment in the appointment letter
C
with effect from 28.7.1998 as a result of non renewal of his
contract of employment with the respondent.
(ii) It is further pleaded by the respondent that in the
Construction Division of the Company, time bound specific
project construction work was being undertaken from time to
D
time and thus no regular work force could be maintained for
such project work. However, as a gesture of goodwill and to
maintain harmonious industrial relations, the employees who
worked in a project work were given preference for employment
in other project work on their own request. In the instant case,
E
the service of the appellant came to an end as per terms of
his employment in the specific project job in the Construction
Division and after completion of the term of aforesaid
employment, the appellant has also taken clearance of his dues.
(iii) It is further pleaded by the respondent that temporary
workmen working in such specific projects are also given
preference for employment in the main plant project subject to
availability of vacancies and their suitability. After completion
F
of the terms of contract of employment, the appellant was
offered fresh employment as Badli worker against vacancies
G
in Potroom Department of the Company. He applied for the
same on 22.10.1998 and after completion of necessary
formalities he was selected against the said vacancy and was
issued appointment letter dated 23.10.1998. He joined his
H
1088
SUPREME COURT REPORTS
[2014] 12 S.C.R.
A duties in Potroom Plant-II Department as substitute workman
but did not report to duty on his own and on the other hand he
raised baseless industrial dispute for unlawful gain.
(iv) It is further pleaded by the respondent that the service
8 of the appellant has not been terminated by the Company but
because the appellant did not report for duty on his own after
joining duty· as mentioned above. Therefore, there is no
industrial dispute between the parties and the reference made
by the appropriate authorities at the instance of the workman
C to the Labour Court is bad in law. However, the respondent
craves leave of the Labour Court to add, amend, alter and
rescind its written statement and to produce evidence oral or
documentary, if found expedient at the relevant stages of the
hearing. However, no plea was made by the respondent in
written form on the provision of Section 2(oo)(bb) of the l.D. Act
D that the termination of the appellant from his service falls within
this provision. Nonetheless, this legal ground without any factual
foundation was pressed into operation before the Labour Court
at the time of addressing its rights. The same has been
addressed by the Labour Court rejecting the contention on the
E basis of recording its reasons which will be dealt with in the
reasoning portion of this judgment.
7. On the other hand, the appellant, by filing a detailed
counter statement before the High Court has sought to justify
F the finding and reasons recorded by the Labour Court
contending that the Labour Court, being a fact finding court, on
appreciation of all pleadings and undisputed facts regarding
the periodical years of service rendered by the appellant with
the respondent, held that he had rendered continuous service
G of 240 days in 12 calendar months. Therefore, the Labou'r Court
has held that the termination order was issued by the
respondent without complying with the mandatory statutory
provisions of Section 6-N of U.P. l.D. Act. The appellant pleaded
that neither the compensation for retrenchment was given to him
H nor was he issued the three months notice nor notice pay in
BHUVNESH KUMAR DWIVEDI v. HINDALCO
1089
INDUSTRIES LTD. [V. GOPALA GOWDA, J.]
lieu of the same as mandated under Section 6-N of the U.P.
A
l.D. Act. The appellant further sought to justify the finding of the
Labour Court that periodical appointment of the appellant for
the very same post in the Construction Division of the
respondent's Plant with the same Badge Number and marginal
increase of basic pay and D.A. is unfair labour practice in terms
B
of Section 25-T of the l.D. which is punishable under section
25-U of the l.D. Act. The High Court concurred with the finding
of the Labour Court wherein it has held that the respondent's
action is in contravention of Section 6-N of the U.P. l.D. Act.
8. The respondent, on the other hand, contends that the· C
.finding on the question of retrenchment is factual and legally not
correct in view of the fact that the termination of the service of
the appellant falls within the provision of Section 2(oo) (bb) of
the l.D. Act. The High Court has exercised its judicial review
power under Articles 226 and 227 of the Constitution of India
D
and also referred to the facts that after termination of the service
of the appellant from the post of Labour Supervisor, he was
offered with employment in the Potroom department w.e.f.
23.10.1998, which he joined and later resigned from that post.
Therefore, though the Labour Court came to the conclusion on
E
facts, evidence on record and law on this aspect that keeping
the workman as Badli worker was unfair labour practice, the
High Gourt has erroneously held that engagement of some
workers as Badli workers is a standard practice in several
establishments and is quiet permissible under law. The High
F
Court further came to erroneous conclusion that the appellant
did resign and having stated so, the High Court further. made
observation that the least which was required from the
respondent under such circumstance, was to pay retrenchment
compensation to the appellant in terms of Section 6-N of the
G
U.P. l.D. Act which was admittedly not done. It was further held
by the High Court that an employee engaged for a particular
project cannot be directed to be retained after the completion
of the project. However, since it was not stated by the
respondent that for which particular project or projects the
H
1090
SUPREME COURT REPORTS
[2014] 12 S.C.R.
A appellant was employed, despite the fact that he had been
continuously working for six years on different projects, the
appellant was conferred with some rights since he had been
rendering permanent nature of work.
8
9. The High Court also referred to the resignation of the
appellant from the job of Badli worker and held that the same
mitigates against his claim. If he wanted permanent job and had
been assured the same, he should not have first applied to be
selected as Badli worker and then resigned just after selection.
C .Having said so, the High Court with reference to the facts and
circumstances of the case, opined that it was not a case of
reinstatement with full back wages. However, by placing reliance
upon the judgment of this Court in the case of Harjinder Singh
v. Punjab State Warehousing Corporation1 , the correctness
of the said substituted award by the High Court is challenged
D in this appeal by the appellant urging various facts and legal
contentions.
10. The learned counsel Mr. Abdhesh Chaudhary
appearing on behalf of the appellant-workman submits that the
E finding and reasons recorded by the High Court in reversing
and setting aside the award of reinstatement with back wages
and other consequential benefits and substituting its award with
award of 1,00,000/- as damages is erroneous in law sinte the
action of the respondent in terminating the services of the
F appellant is in contravention of Section 6-N of the U.P. LO. Act.
While exercising judicial review power by the High Court under
Articles 226 and 227 of the Constitution of India, though it has
concluded on the points of dispute in favour of the workman it
has erroneously interfered with the award of reinstatement with
back wages and consequential benefits which by the Labour
G Court. This finding by High Court is in violation of the decision
of this Court in the case of Harjinder Singh (supra) in which this
Court after adverting to the entire case law on the question of
social justice has examined the conferment of power upon the
H 1.
(2010) 3 sec 1 s2.
BHUVNESH KUMAR DWIVEDI v. HINDALCO
1091
INDUSTRIES LTD. [V. GOPALA GOWDA, J.]
High Court and held that the Labour Court in exercise of its
A
original jurisdiction is the final court of facts and grants of relief
and the same cannot be interfered with in exercise of its
supervisory jurisdiction unless the award is shown to be vitiated
as erroneous in law. Therefore, the impugned judgment and
order is vitiated in law and is liable to be set aside.
B
11. Further, it is contended that the High Court has further
failed to take into consideration the relevant aspect of the matter
namely, that the Labour Court on appreciation of pleadings and
evidence on record with reference to undisputed fact of nonC
payment o~ retrenchment compensation recorded that the
Company neither obtained permission from the appropriate
Government ~o retrench the appellant from his services nor did
it issue any notice or wages in lieu of the same to him. The
action of termination of the service of the appellant on the
ground that it is an automatic termination for non-renewal of D
contract of the employment is in contravention to the statutory
provisions of the U.P. l.D. Act and the law laid down by this
Court in catena of cases, the relevant paragraphs of which will
be adverted to in the reasoning portion of this judgment. On this
ground also the impugned judgment is liable to be set aside
E
and the impugned award of the Labour Court is entitled to be
restored.
12. It is further urged that the High Court has further failed
to take into consideration the fact that the award of damages
F
as against reinstatement without consequential benefits to the
appellant while having concurred with the finding of fact
recorded by Labour Court after adjudication of the dispute and
also the holding by the Labour Cthat the order of termination
is a case of retrenchment and is done in non-compliance of the
G
mandatory requirements as provided under the statute of U.P.
l.D. Act is erroneous in law. Therefore, the impugned judgment
of the High Court is liable to be set aside.
13. Mr. Chander Udai Singh, the learned senior Counsel
H
1092
SUPREME COURT REPORTS
[2014) 12 S.C.R.
A for the respondent-employer sought to justify the award of
damages and setting aside the order of reinstatement with
consequential benefits by the High Court by contending that the
appellant is not a permanent workman. He was engaged on a
. temporary basis periodically and he had no permanent status
B as worker and his services could not be continued by the
employer. His termination from service from the respondent
Company was on account of the condition of automatic
termination w.e.f. 28.7.1998, whereby the contract employment
has come to an end. Therefore, according to the learned senior
c counsel for the respondent, no order of termination was passed
by the respondent. On the other hand, the present case was a
situation of automatic termination due to non-renewal of contract
which is covered under Section 2(oo) (bb) of the l.D. Act and
the same is an exception to retrenchment. This legal aspect,
0
according to the learned senior counsel has not been
appropriately appreciated by the Labour Court. The same has
not been accepted by the Division Bench of High Court in
exercise of its jurisdiction under Articles 226 and 227 of the
Constitution of India. Therefore, the award of damages could
not have been awarded by the Labour Court. However, the
E same has been paid to the appellant and which is accepted
by him. Therefore, he would submit that the appellant is not
·entitled to the relief as prayed in this appeal for the reason that
if automatic termination of services on account of the operation
of the contract of employment Clause is contained in the
F appointment order, then the claim of the appellant is not a case
of retrenchment and compliance of the requirement under
Section 6-N of the U.P. Act does not arise. The same aspect
has not been taken into proper perspective both by the Labour
Court as well as the High Court. Though the appellant has not
G challenged separately by filing SLP the correctness of the
impugned judgment can be challenged by the respondent as it
has got the right under the provisions of Order 41 Rule 33 CPC
to question the correctness of the finding recorded on the
question of the termination by the Labour Court and the High
H Court which made concurrent finding holding that it is a case
BHUVNESH KUMAR DWIVEDI v. HINDALCO
1093
INDUSTRIES LTD. [V. GOPALA GOWDA, J.]
of retrenchment and the same is in contravention of Section 6A
N of the U.P. l.D. Act.
The High Court while passing the judgment and order and
substituting the award of the Labour Court has already granted
damages of Rs. 1,00,000/- as retrenchment compensation. The
8
appellant is not entitled to the relief as prayed for in this appeal
for another reason namely, that he had accepted the damages
awarded in the impugned judgment by the High Court.
Therefore, this Court need not interfere with the impugned
judgment.
14. Another legal contention urged by the learned senior
counsel for the respondent is that the appellant is not entitled
c
to back wages since he is not employed with the respondentCompany and has not even filed application under Section 178
before the High Court when the award passed by the Labour
D
Court was challenged by the respondent. Further, the appellant
admitted that he did not claim wages under the Act which would
clearly go on to show that the appellant was not employed and
therefore, he is not entitled to back wages as awarded by the
Labour Court. Hence, the award of the back wages by the
E
Labour Court is bad in law and the· same has been modified
by the High Court having regard to the facts of the case which
need not be interfered with by this Court in exercise of its power
under Article 136 of the Constitution of India.
15. With reference to the above legal contentions the
F
following points would arise for our consideration :-
(1)
Whether the exercise of power by the High Court
under Articles 226 and 227 of the Constitution and
setting aside the award of reinstatement, back
G
wages and other consequential reliefs and
awarding Rs. 1,00,000/- towards damages is legal
and valid?
(2)
Whether the concurrent finding recorded by the
H
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SUPREME COURT REPORTS
[2014] 12 S.C.R.
A
Labour Court and High Court on the question of
termination of services of the workman holding that
the case of retrenchment falls under Section 6-N of
the U.P. l.D. Act is void ab initio and not accepting
the legal plea that the case falls under Section 2 (oo)
B
(bb) of the Act is correct, legal and valid?
(3)
Whether the workman is entitled for reinstatement
with full back wages and other consequential reliefs
?
C
(4)
What Award?
Answer to point No. 1
16. The appellant has claimed that the High Court has
modified the award passed by the Labour Court which has
D awarded reinstatement of the appellant with full back wages and
other consequential benefits to simply awarding compensation
to the tune of Rs. ·1,00,000/- by the High Court in lieu of
reinstatement with back wages and consequential benefits
which order is bad in law in the light of the legal principles laid
E down by this Court in the .catena of cases. In the case of Heinz
India (P) Ltd. v. Union of lndia2, this Court, on the issue of the
power of the High Court for judicial review under Article 226,
held as under:
F
G
"60. The power of judicial review is neither unqualified nor
unlimited. It has its own limitations. The scope and extent
of the power that is so very often invoked has been the
subject-matter of several judicial pronouncements within
and outside the country. When one talks of 'judicial review'
one is instantly reminded of the classic and oft quoted
passage from Council of Civil Service Unions (CCSU) v.
Minister for the Civil Service [1984] 3 All ER 935, where
Lord Diplock summed up the permissible grounds of
judicial review thus:
H 2.
(2012) 5 sec 443.
BHUVNESH KUMAR DWIVEDI v. HINDALCO
1095
INDUSTRIES LTD. [V. GOPALA GOWDA, J.]
Judicial Review has I think developed to a stage today
A
when, without reiterating any analysis ofthe steps by which
the development has come about, one can conveniently
classify under three heads the grounds on which
administrative action is subject to control by judicial review.
The first ground I would call 'illegality', the second
B
'irrationality' and the third 'procedural impropriety'.
By 'illegality' as a ground for judicial review I mean that the
decision-maker must understand correctly the law that
regulates his decision-making power and must give effect C
to it. Whether he has or not is par excellence a justiciable
question to be decided, in the event of dispute, by those
persons, the judges, by whom the judicial power of the
State is exercisable.
By 'irrationality' I mean what can by now be succinctly
D
referred to as 'Wednesbury unreasonableness'. It applies
to a decision which is so outrageous in its defiance of logic
or of accepted moral standards that no sensible person
who had applied his mind to the question to be decided
could have arrived at it. Whether a decision falls within this
E:
category is a question that judges by their training and
experience should be well equipped to answer or else
there would be something badly wrong with our judicial
system ......
I have described the third head as 'procedural impropriety'
rather than failure to observe basic rules of natural justice
F
or failure to act with procedural fairness towards the
person who will be affected by the decision. This is
because susceptibility to judicial review under this head
covers also failure by an administrative tribunal to observe
G
procedural rules that are expressly laid down in the
legislative instrument by which its jurisdiction is conferred,
even where such failure does not involve any denial of
natural justice."
H
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c
D
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SUPREME COURT REPORTS
[2014] 12 S;C.R.
Further, in the case of Devinder Singh v. Municipal
Council, Sanaufl, it was held that :
"22 ....... A careful analysis thereof reveals that the High
Court neither found any jurisdictional infirmity in the award
of the Labour Court nor it came to the conclusion that the
same was vitiated by an error of law apparent on the face
of the record. Notwithstanding this, the High Court set
aside the direction given by the Labour Court for
reinstatement of the Appellant by assuming that his initial
appointment/engagement was contrary to law and that it
would not be in public interest to approve the award of
reinstatement after long lapse of time. In our view, the
approach adopted by the High Court in dealing with the
award of the Labour Court was ex facie erroneous and
contrary to the law laid down in Syed Yakoob v. K.S.
Radhakrishnan AIR (1964) SC 477, Swaran Singh v. State
of Punjab (1976) 2 SCC 868 P.G.I. of Medical Education
& Research, Chandigarh v. Raj Kumar (2001) 2 SCC 54,
Surya Dev Rai v. Ram Chander Rai (2003) 6 SCC 675
and Shalini Shyam v. Rajendra Shankar Path (2010) 8
sec 329.
23. In Syed Yakoob v. K.S. Radhakrishnan (supra), this
Court identified the limitations of certiorari jurisdiction of
the High Court under Article 226 of the Constitution in the
following words:
The question about the limits of the jurisdiction of High
Courts in issuing a writ of certiorari under Article 226 has
been frequently considered by this Court and the true legal
position in that behalf is no longer in dou~t. A writ of
certiorari can be issued for correcting errors of jurisdiction
committed by inferior courts or tribunals: these are cases
where orders are passed by inferior courts or tribunals
without jurisdiction, or is in excess of it, or as a result of
H 3.
c2011) e sec 584.
BHUVNESH KUMAR DWIVEDI v. HINDALCO
1097
INDUSTRIES LTD. [V. GOPALA GOWDA, J.]
failure to exercise jurisdiction. A writ can similarly be
A
issued where in exercise of jurisdiction conferred on it, the
court or tribunal acts illegally or improperly, as for instance,
it decides a question without giving an opportunity to .be
heard to the party affected by the order, or where the
procedure adopted in dealing with the dispute is opposed
B
to principles of natura! justice. There is, however, no doubt
that the jurisdiction to issue a writ of certiorari is a
supervisory jurisdiction and the court exercising it is not
entitled to act as an appellate court. This limitation
necessarily means that findings of fact reached by the c
inferior court or tribunal as result of the appreciation of
evidence cannot be reopened or questioned in writ
proceedings. An error of law which is apparent on the face
of the record can be corrected by a writ, but not an error
of fact, however grave it may appear to be. In regard to a
D
finding of fact recorded by the tribunal, a writ of certiorari
can be issued if it is shown that in recording the said ·
finding, the tribunal had erroneously refused to admit
admissible and material evidence, or had erroneously
admitted inadmissible evidence which has influenced the
impugned findiAg. Similarly, if a finding of fact is based on
no evidence, that would be regarded as an error of law
which can be corrected by a writ of certiorari. In dealing
with this category of cases, however, we must always bear
in mind that a finding of fact recorded by the tribunal
cannot be challenged in proceedings for a writ of certiorari
on the ground that the relevant and material evidence
adduced before the tribunal was insufficient or inadequate
E
F
to sustain the impugned finding. The adequacy or
sufficiency of evidence led on a point and the inference of
fact to be drawn from the said finding are within the
G
exclusive jurisdiction of the tribunal, and the said points
cannot be agitated before a writ court. It is within these
limits that the jurisdiction conferred on the High Courts
under Article 226 lo issue a writ of certiorari can be
legitimately exercised.
H
A
B
c
D
E
F
G
H
1098
SUPREME COURT REPORTS
[2014] 12 S.C.R.
In the second judgment - Swaran Singh v. State of Punjab
(supra), this Court reiterated the limitations of certiorari
jurisdiction indicated in Syed Yakoob v. Radhakrishnan
(supra) and observed:
In regard to a finding of fact recorded by an inferior
tribunal, a writ of certiorari can be issued only if in
recording such a finding, the tribunal has acted on
evidence which is legally inadmissible, or has refused to
admit admissible evidence, or if the finding is not
supported by any evidence at all, because in such cases
the error amounts to an error of law. The writ jurisdiction
extends only to cases where orders are passed by inferior
courts or tribunals in excess of their jurisdiction or as a
result of their refusal to exercise jurisdiction vested in them
or they act illegally or improperly in the exercise of their
jurisdiction causing grave miscarriage of justice."
17. The judgments mentioned above can be read with the
judgment of this court in Harjinder Singh's case (supra), the
relevant paragraph of which reads as under:
"21. Before concluding, we consider it necessary to
observe that while exercising jurisdiction under Articles
226 and/or 227 of the Constitution in matters like the
present one, the High Courts are duty-bound to keep in
mind that the Industrial Disputes Act and other similar
legislative instruments are social welfare legislations and
the same are required to be interpreted keeping in view
the goals set out in the Preamble of the Constitution and
the provisions contained in Part IV thereof in general and
Articles 38, 39(a) to (e), 43 and 43-A in particular, which
mandate that the State should secure a social order for
the promotion of welfare of the people, ensure equality
between men and women and equitable distribution of
material resources of the community to subserve the
common good and also ensure that the workers get their
BHUVNESH KUMAR DWIVEDI v. HINDALCO
1099
INDUSTRIES LTD. [V. GOPALA GOWDA, J.]
dues. More than 41 years ago, Gajendragadkar, J. opined
A
that:
"10 .... The concept of social and economic justice is a
living concept of revolutionary import; it gives sustenance
to the rule of law and meaning and significance to the ideal
8
of welfare State."
(State of Mysore v. Workers of Gold Mines13, AIR p. 928,
para 10.)
18. A careful reading of the judgments reveals that the High
C
Court can interfere with an Order of the Tribunal only on the
procedural level and in cases, where the decision of the lower
courts has been arrived at in gross violation of the legal
principles. The High Court shall interfere with factual aspect
placed before the Labour Courts only when it is convinced that o
the Labour Court has made patent mistakes in admitting
evidence illegally or have made grave errors in law in coming
to the conclusion on facts. The High Court granting contrary
relief under Articles 226 and 227 of the Constitution amounts
to exceeding its jurisdiction conferred upon it. Therefore, we
E
accordingly answer the point No. 1 in favour of the appellant.
Answer to point No. 2
19. No plea was made by the respondent in its written
statement filed before the Labour Court with regard to the
F
provision of Section 2(oo)(bb) of the l.D. Act. Nonetheless, this
legal ground without any factual foundation was pressed into
operation before the Labour Court by the learned counsel for
the respondent. The same has been addressed by the Labour
Court by rejecting the said contention by assigning its own
G
reasons. Before we record our finding on this contention, it is
pertinent to mention the provision of Section 2 (oo) (bb) of the
l.D.